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Increasing Transparency under the JCPOA

Remarks at the Vienna Center for Disarmament and Non-Proliferation: "Transparency and the NPT: New Goals and Norms"

May 3, 2017

Publication Type:

Speeches and Testimony

Weapon Program:

Nuclear

Author:

Valerie Lincy

Thank you for the invitation to speak today about the need for greater transparency with respect to the implementation of the Joint Comprehensive Plan of Action (JCPOA). The Wisconsin Project has been focused for some time on the proliferation threat posed by Iran, which is reflected on our Iran Watch website. My remarks today are based on a recent Iran Watch report about transparency under the JCPOA.

The agreement promised more information on Iran's nuclear program and greater access to Iranian facilities. Such transparency was described as one of the primary benefits of the JCPOA by architects of the agreement and its supporters. However, this promise has not been fulfilled. Instead, a sort of diplomatic veil has been drawn over Iran's nuclear status, obscuring important parts of it from view. Initially, the veil may have been drawn to preserve the agreement, but it is our view that the lack of transparency now raises questions about whether the monitoring, verification, and enforcement measures of the JCPOA are functioning properly.

Courtesy of VCDNP

In our report we look at where, specifically, transparency was expected but has been lacking, and how to increase transparency in these areas in a constructive manner—one that does not seek to upend the agreement or renegotiate its terms. To that end, we have identified two main areas of focus: International Atomic Energy Agency (IAEA) reporting and inspections and Joint Commission decision making. I will focus my remarks on these areas.

Decrease in Detailed IAEA Reporting

Since the implementation of the JCPOA in January 2016, there have been five IAEA reports that narrowly cover Iran's compliance with the agreement. Each report is short and lacking in detail, which was a surprise, given the detailed nature of reports prior to the nuclear deal. This lack of detail makes independent assessments of Iran's nuclear status more difficult. Our report includes a chart that compares the level of IAEA reporting before and after the agreement. Some key shortcomings include:

No precise inventory of Iran's low-enriched uranium (LEU) stockpile, including production and flows.

No information on parts of the nuclear fuel cycle not covered by JCPOA restrictions, such as natural uranium hexafluoride (UF6) production.

Less detail on centrifuge operations, including the number operating and their output.

Minimal information on Iran's research and development work on advanced centrifuges, and no information on how Iran is carrying out its long-term enrichment research and development plan, which it has submitted to the Agency.

On the last point, in the absence of official information from the IAEA, we are forced to make judgments based on incomplete and potentially incorrect information. The Iranian government has made a few public statements about its long-term plans for advanced centrifuges. And the Associated Press published a version of Iran's enrichment plans. Outside of these disclosures, however, there is limited information on Iran's plans and a great deal of speculation.

As a result of the JCPOA, Iran is provisionally applying the IAEA's Additional Protocol and allowing inspectors access to a broader range of sites and information. So, the IAEA is collecting more information but reporting less. Why? Because of language in IAEA and U.N. Security Council resolutions.

As of Implementation Day, IAEA reporting is no longer driven by the Agency's "absence of confidence that Iran's nuclear program is exclusively for peaceful purposes." Rather, a December 15, 2015 Board of Governors resolution decided that the IAEA is "seized of a separate agenda item covering JCPOA implementation and verification and monitoring in light of United Nations Security Council resolution 2231." As IAEA Director General Yukiya Amano has explained, "as the basis [for reporting] is different, the consequences are different."

It is possible to return to the IAEA's previous level of reporting without renegotiating the JCPOA. Resolution 2231 sets the rule for IAEA reporting. It calls on the IAEA to "undertake the necessary verification and monitoring of Iran's nuclear-related commitments . . . under the agreement," and asks for "regular updates . . . on Iran's implementation." So, resolution 2231 tells the IAEA what is necessary to inspect but not what is necessary to report. While there is nothing requiring the IAEA to report in detail, there is nothing preventing it either. The United States and its partners party to the JCPOA should push the IAEA to provide more detailed public reporting, despite Iran's resistance. Greater public knowledge through detailed IAEA reporting is essential for the deal's long-term success.

Transparency Surrounding Inspections

The JCPOA gives the IAEA much greater latitude in terms of where it can conduct inspections and undertake remote monitoring in Iran. It lays out parameters for accessing both declared nuclear sites and other sites in Iran, as well as containment and surveillance measures for nuclear material not inspected under standard safeguards.

However, once again little is publicly known about how the Agency is using this new latitude. Since Implementation Day, the IAEA reports only that it has conducted "complementary access under the Additional Protocol to sites and other locations in Iran." In the past, the IAEA gave detailed narrative accounts of its inspections, naming specific sites visited, the dates of inspection, inspection methods, and sometimes even a list of specific equipment inspected and requests to interview Iranian personnel. The IAEA described the issues raised and explanations received by the inspectors, and listed any unresolved questions. This allowed the public to know the questions the IAEA was pursuing, the level of cooperation it was receiving from Iranian authorities, and whether questions were being resolved to the Agency's satisfaction. Today we no longer get this texture about inspections from IAEA reports.

There is also the question of "challenge" inspections. The JCPOA provides a mechanism for mounting inspections of suspicious, undeclared sites in Iran. The agreement allows the IAEA to request access to a suspicious site and, if Iran refuses, to petition the Joint Commission for access. If five of the eight Commission members agree, then Iran must allow an inspection. This process, including adjudication by the Joint Commission, is meant to take up to 24 days. Since JCPOA implementation, it is unclear whether a single challenge inspection has been sought or mounted. We do not know if the adjudication process in the Joint Commission has been tested or if Iran would indeed allow inspectors access to undeclared sites, including to military sites alleged to be involved in nuclear work, which has been the case in the past.

The IAEA must establish clear modalities for managed access under challenge inspections immediately, perhaps through something resembling an inspection exercise. Both Iran and the inspectors could run through the requirements related to speed and breadth of access, the provision of supporting documents, and interviews with relevant personnel. The lack of transparency related to challenge inspections undermines one of the main mechanisms for ensuring that Iran is not conducting prohibited nuclear work at secret sites, and it must be addressed.

Problem of Confidentiality at the Joint Commission

The JCPOA established a multilateral Joint Commission to act as the dispute resolution and oversight body for the agreement. It includes representatives from each of the P5+1 countries (China, France, Germany, Russia, the United Kingdom, and the United States), Iran, and the European Union. The Joint Commission meets regularly at the working level and the ministerial level and has taken up issues such as nuclear exemptions requested by Iran and the pace of economic relief provided by the JCPOA. Unfortunately, the JCPOA specified that the work of the Commission is confidential, unless its members decide otherwise. And unlike the IAEA, the Commission does not issue even a broad public report, either quarterly or after its meetings. As a result, very little is officially known about these meetings. Outside groups must generally rely on leaked information.

For example, the news that the Joint Commission granted Iran a series of exemptions from nuclear restrictions of the agreement, including in advance of Implementation Day, only came to light because of a report by the Institute for Science and International Security in September 2016. In December 2016, the Commission ultimately released documents related to these exemptions, but the delay raised questions about whether the release covered all Commission decisions through that date.

The Joint Commission has the authority to issue exemptions in a number of sensitive areas, including:

Research and development on uranium metal-based fuel

Operation of additional or larger hot cells

Mechanical testing of new types of centrifuges

Uranium enrichment-related exports

Acquisition, development, or use of multi-point detonators

It is crucial that Joint Commission deliberations and decisions are presented publicly. The Joint Commission itself is empowered to change the rule imposing confidentiality and should do so in favor of more transparency.

More transparency would also benefit the Joint Commission's various working groups, in particular the Procurement Working Group (PWG). The PWG reviews proposals for nuclear sales to Iran through an official channel, and it advises the Joint Commission and Security Council on such sales. While the JCPOA describes the procurement channel process, there has been very little information about how it has functioned over the past year. U.N. Secretary General and U.N. facilitator reports have provided useful information, but they are only issued every six months and lack important details. Based on these reports, we know that five proposed sales have been submitted: three were approved and two were under review. However, there is no description of the items, the end-user, or the declared end use. Our main source of information regarding these sales has again been media reports.

It would be useful to know the PWG criteria in reviewing procurement requests, as well as its decisions, both approvals and denials. One way of increasing transparency would to make public reports by the PWG coordinator, which are submitted to the Joint Commission every six months.

Filling the Transparency Gap

Transparency was supposed to be one of the primary benefits of the JCPOA. Indeed, the agreement itself, including technical annexes, was made public. However, there has been a marked decline in transparency since JCPOA implementation. Public reporting on Iran's nuclear program has shrunk and become more general. Little is known about the various verification and monitoring mechanisms established by the JCPOA and how they are functioning, including Joint Commission decisions, challenge inspections, nuclear exemptions, and nuclear-related procurement requests.

We believe that increased transparency is essential to preserving the agreement. Transparency is a means of demonstrating whether the JCPOA is working, whether the monitoring and verification provisions of the agreement are functioning, and whether the supply-side constraints are respected. Specifically, transparency confirms to all those not party to the agreement that Iran remains at least one year away from being able to fuel one nuclear weapon for a period of 10-15 years at least, which is the JCPOA's milestone achievement. If Iran is shown to be fulfilling the terms of the agreement, there will be more confidence in Iran's peaceful intentions. If Iran is nibbling away at the edges of the deal's restrictions and offering minimal cooperation, then this confidence is undercut.